Chrispus Mugambi Njoroge & 4 others v John Mundia Njoroge & 8 others

RULING 1. This is a succession matter with not less than seventeen listed beneficiaries. The deceased in the matter, one Richard Njoroge Njogu, died intestate on 18th May 1998. A succession cause was filed on 4th March 1999. The deceased was polygamous and had 3 wives and several children. The deceased left a parcel of land, LR NO. 633/2 Timau (the suit property), which is the subject of this old succession cause. Following the filing of the succession cause, the court issued a grant of letters of administration to three administrators, one from each house. The grant was confirmed on 5th October 2004. 2. Subsequently, the parties (the applicants on one side and the respondents on the other) entered into a consent, in which they agreed to each appoint a surveyor and an agriculturist to work together for the purpose of subdividing the land into the portions that were to be transmitted to the beneficiaries. These experts were required to file a joint report to the court for the purposes of assisting the court in determining the mode of distribution. 3. Instead of filing one report as directed by the court, some of the present applicants, namely, 2nd, 3rd, 8th, 10th and 11th respondents in the succession suit, appointed their own experts and filed a separate report. The learned Judge found that this second report was not provided for in the consent order and decided to disregard the same and adopted the report that was presented by the other parties which was inclusive of all the beneficiaries. The report was filed in court on the 2nd of May 2023. The learned Judge in her ruling delivered on 25th October 2024, directed that the land be formally surveyed and subdivided according to the report so that each party would be provided for at the time of confirmation of the grant. This ruling is what triggered the appeal from which this application arises. 4. In the application before Court, filed under Rule 5(2)(b) of the Court of Appeal Rules, the applicants sought orders of stay of execution of the said ruling or alternatively, that the Court issues orders of status quo in regard to the transmission of the estate of the deceased. The application is premised on the grounds on its face and supported by the affidavit of Chrispus Mugambi Njoroge dated 4th December 2024. 5. According to the applicants, the trial court directed that each of them could appoint their experts and file a report in court, which is what they say they did. They, therefore, blamed the court for failing to abide by its earlier order and put into consideration their report which the court rejected. They, therefore, asked the court to allow the application and either stay the orders issued in the ruling or order status quo pending the hearing and determination of their appeal. 6. In a joint replying affidavit sworn by Cecilia Muthoni Njoroge and John Ngari Njoroge, the respondents depose that the applicants have no arguable appeal, and that their health is waning and the matter has been pending in court for too long and it should, therefore,be brought to a conclusion. We agree and observe that this matter has been in court for over two decades and it ought to come to a conclusion. 7. The Court gave interim orders of status quo pending delivery of this ruling. Both parties filed submissions which we have duly considered. We note that although the applicants claim that they have triable issues in their appeal, or for that matter that, an arguable appeal, they have not demonstrated what points these are. Further, they have not demonstrated that if the orders sought are not granted, they will suffer irreparable loss or their appeal will be rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1352/eng@2026-07-03 2

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8. We appreciate that both parties have very ably articulated the law pertaining to grant of orders of stay of execution as sought in this application. However, it was the responsibility of the applicants to demonstrate to the Court that they have an arguable appeal, even though it may not be one that will necessarily succeed. What they seem to be challenging in the ruling is that the learned Judge failed to consider their report. We have looked at the report that was accepted by the court and we note that it includes all the registered beneficiaries and we do not find any grounds for disputing or impugning the said report. 9. It is clear that the applicants may have been unhappy with the contents of the said report but they have not pointed out what they are displeased with, and in any event, those are issues that should be tackled before the probate court. As this application stands, arguability has not been demonstrated, and that being the case the nugatory aspect becomes moot. We are, therefore, not persuaded that there is an arguable appeal before the Court, and this application does not pass muster and is for dismissal. 10. The application and appeal are in our view just an attempt to perpetuate these succession proceedings which ought to have been concluded over 20 years ago. We see no reason why this application should be allowed and we dismiss it. We make no orders as to costs as this is a family matter. DATED AND DELIVERED AT NYERI, THIS 3RD DAY OF JULY 2026 W. KARANJA .................................. JUDGE OF APPEAL J. LESIIT .................................. JUDGE OF APPEAL ALI-ARONI .................................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1352/eng@2026-07-03 3

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